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August 26, 2006

What's going on behind closed doors at the US Sentencing Commission?

Academics and federal defenders have long complained that the US Sentencing Commission often deliberates in secret and that its notice-and-comment amendment process is ineffective. Prosecutors, understandably, have not complained because the Justice Department has an ex officio representative on the USSC, and nearly all guideline amendments increase sentences.

Right after Blakely and Booker, it seemed the USSC was striving for a more transparent and deliberative decision-making process. But, sadly, lately there has been very little public information about the USSC's recent (lack of) work on crack sentencing and other pressing post-Booker issues (complaints here and here and here).

Intriguingly, the USSC now has posted this meeting notice on its website, which indicates that the USSC will be voting on an "Emergency Amendment on Intellectual Property" and on the "Promulgation of Commentary Amendments." Disappointingly, to my knowledge, the scope, terms and language of these amendments have never been publicly discussed and there has not been any form of notice-and-comment process. Indeed, it is not clear how someone can even find out whether the "Commentary Amendments" are about Booker or some other topic. Inquiring minds (and bloggers) want to know.

As detailed here, the USSC had six public hearings in the period after Blakely and Booker. But the USSC has not had an official public hearing on any topic in the nearly six months since it released its "year after Booker" report back in March. And though the USSC has continued to generate useful post-Booker (and pre-Booker) data, these coming votes suggest that (perhaps a lot of) other federal sentencing work has been afoot.

So, to rephrase the title of this post, I cannot help but wonder what's going on behind closed doors at the US Sentencing Commission.

Comments

I am a retired academic criminologist (Kean University) living in the Washington area writing about crime policy (www.crimeletter.net)
net). Following your 8-26 piece wondering
about the US Sentencing Commission's
promise of public discussion, I attended
today's public meeting. It lasted 10
minutes. The Commission accepted the recommendations of its staff and the DOJ on two sentence enhancements. Both were complicated, but I think anyone not part of the process, ould,
like me, would understand nothing. When the chair asked "any discussion?" no one spoke. I
I counted about 11 staff people at tables,
and 15 -16 members of the "public." I gathered that the defense bar was there, perhaps as a watchdog, but silent. The chair, in a few comments, suggested that they had little
choice, given their mandate from
Congress.
Watching one session hardly makes me
an expert, but this looked to me like
cover. Congress can now say, we didn't
enhance these sentences, the USSC did.